50 Wis. 575 | Wis. | 1880
Under the rule of this court, a nonsuit should not be granted except where the evidence, on the most favorable construction for the plaintiff, will not justify a verdict in his favor. All which the evidence in any degree tends to prove, must be deemed as fully proved; every fact which the testimony, and all reasonable inferences from it, conduce to establish, must be assumed to be established, in passing upon the correctness of the nonsuit. Imhoff v. Railroad Co., 22 Wis., 682; Sutton v. Wauwatosa, 29 Wis., 21. Within this rule it is clear to us that this case should have gone to the jury upon the evidence. In the first place it is very plain, under our decisions, that, had the plaintiffs negotiated directly with Palmer & McLaren, the local agents of the defendant at Oshkosh, for the insurance, and had the understanding with them which they did have with Lawson, the company would not be heard to urge a forfeiture of the policy on account of the subsequent insurance on the property. The cases of Miner v. Ins. Co., 27 Wis., 693; Roberts v. Ins. Co., 41 Wis., 321; Gans v. Ins. Co., 43 Wis., 108; Amer. Ins. Co. v. Gallatin, 48 Wis., 36, are very distinct and conclusive upon this question.
In Miner v. Ins. Co., Dixon, C. J., states the tendency and result of the modern authorities upon this point to be, that agents authorized to make contracts of insurance may waive any of the written or printed conditions of the policy, and bind the company by such waiver; and that their representations or statements made, or promise, assurance or verbal consent given, to the assured at the time of issuing the policy, or when acting within the scope of their agency, and with knowledge of the facts constituting the breach, will, if confided in and relied on by the assured, who is himself innocent and in
The question then arises, Is there ground for holding on the admitted facts, or is it a reasonable inference from those facts, that the company was bound by the acts of Lawson? He was an insurance agent doing business at Oshkosh, to whom the plaintiffs applied, in the early part of May, 1879, for insurance on the property. Lawson was informed by the
But Lawson testified on the trial that he never pretended to act as the agent of the defendant, but procured the policies from Palmer & McLaren, whom he did not inform that there was permission to make any insurance on the property other than that named in defendant’s policy. Such, then, being the facts, can it be said that Lawson must be considered the agent of the defendant, with power to consent to the additional in
Now it is difficult to imagine what object this provision was intended to accomplish, or what purpose subserve, if it has not the effect, under the circumstances, to mate Lawson the agent of the defendant in the transaction. His acts, certainly, bring him within both the letter and spirit of the law. He was the only real actor for the defendant in making the contract; pro hac vice he assumed to represent, and did represent, the company in the matter; he'received the application, settled with the insured the rate and terms of insurance, delivered to them the policy, collected the premiums, and shared in the commission. In fact, he did everything that was done on behalf of the company, except the mere act of countersigning the policy. He was the only person the plaintiffs dealt with; they knew no other agent in effecting the in-sui’ance; they were totally ignorant of his relation to the defendant, or of his want of authority to represent and act for
But it is said that it was unreasonable to make the defendant responsible for the acts of Lawson, who was neyer author* ized to act for it or bind it in any way. The answer to this objection is, the legislature has assumed the right to regulate the business of insurance, and prescribe the manner in which it shall be conducted in this state. It has declared that whoever solicits insurance on behalf of an insurance company, or makes any contract of insurance, or in any manner aids or assists in making such contract, or transacts any business for the company, shall be held an agent of such company to all intents and purposes. The obvious intention of the legislature is to make an insurance company responsible for the acts of the person who assumes really to represent and act for it in these particulars, and to change the rule of law that the insured must at his peril know whether the person with whom he is dealing has the power he assumes to exercise, or is acting within the scope of his authority. If there could be a doubt as to the real object of the section, it would be removed by a reference to its history and origin. . The revisers, in their
It follows from these views that the judgment of the circuit court must be reversed, and a new trial ordered.
By the Gourt. ■— So ordered.